Tag: decision

Continuation of the excerpts of the Kogi State Governorship Election Petition Tribunal ruling which we started runn ing on Sunday

What while the ground of the petition is to the effect that the 2nd Respondent was not at the time of the election qualified to contest the election, the facts in support of same as contained in the petition merely alleged that the 2nd Respondent was not sponsored and did not participate in the November 21, 2015 election.

2. While ground two of the petition is to the effect that the Respondent was not duly elected by majority of lawful votes cast at the election, the facts in support of the said ground in the petition alleged that having garnered a total of 240,867 votes by his joint candidacy with the late gubernatorial candidate that they had 12,13,14,15,16,17,24,25,31,47,50,51,52 and over 240,000 votes Respondent’s 6885 I. That while the ground of the petition secured majority of lawful votes as against 6885 votes, it is a fact therefore that in the instant petition support of ground one under section 1 3 8(I)a, of the constitution is at variance with section 1 77(c) of the constitutional requirement for election as a governor. To that end, the facts pleaded by the Petitioner do not support ground one of the petition.

On ground two of the petition, the tribunal is of the view that facts pleaded in support of this ground must necessarily plead that some or all the votes cast and counted for the 2nd Respondent were unlawful by reason of irregularities or non- compliance with the Electoral Act 2010, which must be determined at the time the votes were cast. See the definition of valid or lawful in the case of EJIOGU .V. IRONA (supra) at 560 para A-B (supra)

From the above, it is obvious that the averments of the Petitioner in his pleading are not in consonance with the definition of lawful votes as contemplated under section 13 8(I) c of the Electoral Act 2010 (as amended) especially in view of the judicial authorities on the definition of same.

Consequently, the Respondent’s objection is upheld on this issue.

On issue four as crystallized, the Respondents had contended that the reliefs sought by the Petitioner in reliefs 56 did not arise from the two grounds of the petition. They had contended that one of the grounds of the petition is that the 2nd Respondent was not at the time of the election qualified to contest for the office of governor of Kogi State having not been sponsored by a Political Party, that the reliefs sought, ought to have been for an order for nullification of the election as provided by the provisions of section 1 40 (1) and (2) of the Electoral Act 20 1 0 (as amended).

The Respondents/Applicants equally argued that the reliefs sought by the petition in the said paragraph 56 are also at variance with his ground two of the petition. The Petitioner on the other hand contends that the reliefs sought in the petition relate to the grounds of the petition and had placed reliance on section 1 40 (3) of the Electoral Act.

For the avoidance of doubt, the tribunal hereby reproduces the grounds upon which the petition is brought as follows:

Ground one: “that the 2nd Respondent was at the time of the election not qualified to contest the election”

Ground two: “that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election”

As stated earlier, these grounds are in contemplation of section 138(1) a and c of the Electoral Act 2010 which grounds under section 140 (1) and (2) anticipates a relief couched for the order of nu1lification of the election and/or an order for fresh election.

The tribunal notes that the Petitioner’s case is hinged on having scored the highest votes in the November 21, 2015 election, thus ought to have been declared the winner of the Kogi state governorship election having scored 240,867 at November 21, 2015 election as against the Respondent who scored 6885 at the December 5th, 2015 election.

However, the Petitioner’s ground two of his petition as reproduced above as earlier observed under issue three does not incorporate the meaning of majority of lawful votes cast as envisaged under section 138(I)c of the Electoral Act 20 1 0 (as amended) and as interpreted by judicial authorities. See ETLOGU V IRONA (supra) at 560 para A-B

Consequently, it is this tribunal’s humble view that the reliefs sought by the Petitioner in paragraph 56 is also not in the contemplation of section 140 (3) of the Electoral Act 20 10 in so far as the definition of “majority of lawful votes” is concern and we so hold. The Respondents objection is hereby upheld. AMOSUN .V. INEC & ORS (2010) LPELR 4943(CA)

On issue five as crystallized by the tribunal, having carefully examined the issues raised by the parties finds that the following salient issues are in contention by the parties:

1. The 1st Respondent contends that since the petition is based on the election of 21/1 1/2015, the Petitioner was obliged within the provisions of section 285 (5) of the 1999 constitution to have filed his petition within 2 1 days from the date of declaration i.e. 22/1 1/2015.
2. That the petition filed on 21/12/20 1 5 by the Petitioner in the instant petition was filed out of time and hence statute- barred.
3. That the failure to file within the period laid down by the

constitution is fatal to the petition and robs the tribunal of the jurisdiction to entertain same.

4. That because no declaration was made by the 1St Respondent on the election of 2 1/1 1/20 1 5 as the election was declared inconclusive, that no right accrued to the Petitioner from an inconclusive election and hence Petitioner derived no reasonable cause of action from same.

On the other hand, the Petitioner contends that the election of 2 1/1 1/201 5 was conclusive as the joint candidacy of the late Prince Audu and himself had won the 2 1 /1 1 /20 1 5 election with the highest vote before his demise.

1. That from the death of Prince Audu, he stepped into the shoes as the governor- elect by virtue of their victory in the 21/11/2015 election.
2. That from the above, his cause of action arose from the 21/11/2015 election.
3. Furthermore, that on the declaration of the 2nd Respondent as the governor-elect following the 5/12/20 15 election which he scored 6885, that his cause of action to join the 2nd Respondent to the petition equally arose.
4. Finally, that the failure of the 1st Respondent to raise the issue of statute bar in his reply to the petition is fatal to his objection in the preliminary objection.

Having analysed the contention of the parties in respect of this issue as above, the tribunal finds as a fact that on the contention of the Petitioner that election was concluded as at the 21/1 1/2015, it presupposes that the Petitioner’s cause of action ought to have arisen from the 22/11/2015 against the 1st Respondent and as against the 2nd Respondent on the 6/1 2/2015.

From the totality of the contention of the Petitioner, it is obvious that the Petitioner assumes that election was concluded on the 22/11/2015 contrary to the contention of the Respondents that the election of 21/ 1/2015 was not conclusive.

Having said this, we must say that the 1st Respondent, 1NEC remains the statutory body charged with the responsibility of making declaration and returns in an election. The tribunal equally notes that the issue of statute bar is an issue of law which goes to the being the life wire of every decision of a court can be raised at any stage of the proceeding.

The tribunal find from the facts available in the instant petition that the election of 21/11/2015 was declared inconclusive by the 1st Respondent (INEC). This being the case it is the tribunal’s view that no right can accrue from an inconclusive election to the Petitioner and consequently, the Petitioner lacks reasonable cause of action in respect of the said inconclusive election. We therefore uphold the objection of the 1st Respondent on the issue.

Learned counsel to the 2nd Respondent on this issue six submitted that, the failure of the Petitioner to join APC as a party to the petition renders same incompetent. Reliance was placed on section 221 of the 1999 Constitution, AMAECHI .V. INEC (2007) (supra),

AZUBUIKE .V. PDP (2014) supra. He contended that the Political Party (APO) is a necessary party to the petition in view of the fact that its presence will effectively and effectually determine the issues in dispute between the Petitioner and the 2nd Respondent. Further, it was submitted that the Petitioner had asserted that he contested the election as a deputy governorship candidate of the (APC) and it is also a fact that the same (APC) sponsored the said 2nd Respondent to contest the said election in dispute. Consequently, he further argued that APC is in the best position to state before this tribunal who its candidate really was as between the Petitioner and the 2nd

Respondent. Counsel submitted that by virtue of the reliefs sought by the Petitioner in paragraph 56(VIII) wherein he sought an order of the tribunal to nullify the victory of APC, it became imperative that APC ought to have been joined as a party. He urged the court to strike out the petition for non-joinder.

The petitioner/Respondent on the other hand had contended that by virtue of section 137 of the Electoral Act 2010, APC is not a mandatory Respondent hence not a necessary party to the petition, more so since the Petitioner has no complaint/relief against APC. He urged the tribunal to discountenance the objection.

After a careful consideration of submission of counsel in respect of this issue, the tribunal notes that APC is the Political Party that sponsored both the Petitioner and the 2nd Respondent.

Furthermore, although the Petitioner contends that it has sought no relief or complained against the said Political Party’ (APC), he has however urged the tribunal to declare that the return of the 2nd Respondent as unconstitutional, illegal, unlawful, undemocratic, arbitrary, null and void and ultra vires the powers of the 1st Respondent, which relief is indirectly sought against the Political Party (APC).

The Supreme Court in the cases of OGBOLOS1NGHA. & ANOR .v. BAYELSA SIEC & II ORS (supra) and AZUBUIKE .V. PDP (supra) stated that:

“It is a political party through the instrumentality of a sponsored candidate that wins election. A candidate cannot stand election without being sponsored nor can a political party win a seat in an election except through a candidate it sponsored”

It is trite that a person likely to be affected by a decision reached in matter ought to be joined as a party. To this end, this tribunal considers as a necessary party to this petition presence and effectually determining the dispute between the Petitioner and the 2nd Respondent. See GREEN .V. GREEN (1987) NWLR (PT.61) 481. Consequently, the tribunal hereby holds on this issue that the non- joinder of APC fatal to the instant petition.

Having ruled on the preliminary objection as above, the tribunal on the whole draws the inevitable conclusion that the preliminary objection of the 1st and 2nd Respondents are meritorious and are hereby granted. However in the event that we were wrong in our holding,  we shall now consider the petition on its merit.

CONSIDERATION OF THE MERIT OF THE PETITION BY THE TRIBUNAL

Now on the petition itself, counsels on behalf of parties adopted the four issues formulated at the pre-hearing session to argue their various submissions. Their issues are:

1. Whether the petition in issue is competent considering the issues of Locus Standi, sponsorship, nomination, intra-party issues as raised in the petition.
2. Whether the Petitioner has made out a case of alleged non- qualification of the Respondent to contest the Kogi State Governorship Election held on the1st November, 2015 and

5th December, 2015.

3. Whether the votes cast for the joint ticket of Late Prince Abubakar Audu and the Petitioner in the Governorship Election of November 21, 2015 is transferrable to the 2nd Respondent.
4. Whether the Petitioner, who was the associate/deputy governorship candidate of Late Prince Abubakar Audu at the Kogi State governorship election held on November 2 1, 2015 was not duly elected as the Deputy Governor of Kogi State at the conclusion of the governorship election held on November 21,2015.

The tribunal has carefully articulated issues raised by parties, in respect of issue one as formulated which we herein summarize as follows:

1. The two Respondents have each contended that the Petitioner lacks locus Standi to present the petition not having participated in the primaries that brought in the 2nd Respondent and that his name was never submitted to 1NEC as a governorship candidate by APC, his party.
2. That the Petitioner is not qualified as a governorship candidate within the meaning of section 1 87 of the 1999 constitution, the governorship candidate having died before the conclusion of election and no declaration and return was made before his death.
3. The Petitioner had not averred in his petition that he was nominated by his party and his name was forwarded to INEC as governorship candidate.
4. That the complaint of the Petitioner borders on issues of nomination and substitution which is within the internal affairs of the party hence an intra-party dispute which the Petitioner lacks jurisdiction to challenge.
5. That the case of the Petitioner is based on the election of

21/1 1/2015, and hence the petition ought to have been filed within 21 days of such declaration by the Respondent. Consequently, that the petition filed on 21/1 2/20 1 5 is statute barred thus robbing the tribunal of jurisdiction to adjucate on same,  On the other hand, the Petitioner contends that:

1. That the petition did not raise issues of sponsorship and nomination and intra party issues hence the Petitioner has locus Standi to sue.
2. That the joint candidacy of late Prince Audu and the Petitioner won the election by the 21/1 1/2015 hence the Petitioner by virtue of the provisions of sections 1 8 1 (2) and I 87 of the 1999 constitution and 1 37(I) a of the Electoral Act 2010 has locus standi to sue.
3. Petitioner equally contended that by exhibit P4, it shows that the Respondent acknowledged the fact of the candidacy of the Petitioner as further supported by paragraphs 2,3,4,10,12,14,15,25,29,30,31,43,52 and Š3 (iii), (Vii)
4. That the joint candidacy of the Petitioner and the late Prince Audu garnered over240, 000 votes before his death, thus showing the sufficient interest of the Petitioner in the petition as supported by exhibit P9, 12, 34 and 35.
5. That the election was concluded as at the 21/ 11/2015 hence the Petitioner falls within the contemplation of section 181 of the 1999 constitution and has no need to be an aspirant in the primaries before filing the petition.
6. That contrary to the submission of the Respondent, that the petition was filed within time as it was filed within 21 days of the declaration and return of the 2nd Respondent as the governor and that was when there became a Respondent to sue within the meaning of paragraph 4 of the 1st Schedule to the electoral Act 2010 (as amended).

In considering issue one above, the tribunal notes that the issue comprises the following:

1. Issue of locus Standi to file the petition.
2. Issue of nomination and substitution as an intra- party dispute.
3. Issue of whether the petition as presently constituted is statute barred.

Having stated as above,

1. It is the tribunal’s considered view that it is bound by its earlier decision on the issue of locus standi as held in the preliminary objection
2. The tribunal is further of the considered view that it is bound by its decision on the issue of whether or not the petition is statute barred as held on issue five of the preliminary objection as above.
3. On the issue of the intra- party, this tribunal had earlier in the preliminary objection ruled that the issue of nomination and substitution of the Respondent though an intra-party issue which ordinarily ought to be outside the jurisdiction of this tribunal being a pre-election issue, but same having arisen in the course of the election that the tribunal has jurisdiction to determine same as a post-election dispute.
4. However, the issue of whether the Petitioner has the capacity to challenge the decision of his Political Party in the substitution of the late Prince Audu with the 2nd Respondent, and whether not being an aspirant in the party’s primaries of APC for nomination of a gubernatorial candidate can challenge the nomination and substitution of the 2nd Respondent will now be considered.

It is trite that the process and procedure for nomination of a candidate to be sponsored by a Political Party is the domestic affairs of the party, based on the sole discretion of the Political Party and the court has no jurisdiction to question such exercise of such power by the Political Party. See PDP V SYLVA (2012) 13 NWLR (1316) 85 SC, at 124 para d, 125 paras B-G, 137 para H, 137-139 paras F-A, 142-143 paraF-4 &152 paras F-G.

This tribunal also has no power to investigate matters which took place before the conduct of an election. See ANP1 V USMAN (2008) 12 NWLR (Pri. 614) UDUMA V ARIJNSI (SUPRA) t 131 paras F-H

The election tribunal also has no jurisdiction to enquire into primaries of a Political Party. See AISHA JUMMAI ALHASSAN V DARIUS ISHIAKU (supra), ADEGBUYI V APC (2015) 2 NWLR (PT. 1441)1 at 22 para H.

Further, that a Political Party has a right to nominate or select any candidate of his choice without any hindrance to contest an election on the platform of the party. See the case of UKA CHUKWU .V. PDP (2014) 17 NWLR (PT. 1435)134 at 202 paras D — F and 203 paras A-D.A

Furthermore, a complainant must be an aspirant who participated in the primaries that produced the sponsored candidate, see also UKA CHUKWU(supra) at 182 paras E-He 184, paras F-G, 203 paras A-B.

Having said this, it is a fact that the instant petitioner was sponsored by Political Party the APC, as a deputy governorship candidate in the 21/1 1/2015 governorship election.  It is equally a fact that the respondent is a member of the same Political Party.

Equally true is the fact that on the death of the late gubernatorial candidate of APC, the late Prince Audu, the party (APC) nominated the 2nd Respondent, as it substitute to its  late gubernatorial candidate. Furthermore, the late gubernatorial candidate died before the election was declared inconclusive. The 2nd Respondent was the 1st runner-up in the parties primaries as shown in exhibit P2 (8) having scored the total votes of 703 votes against the late Prince Audu 1109 votes.

It is also a fact that the name of the Petitioner was not listed as participant in the said primaries for gubernatorial election as shown in exhibit R2 (8). It is a fact that the election into the gubernatorial seat of Kogi State on 2 1/ 1 1 /20 1 5 was declared inconclusive by the 1st Respondent. It is also not in controversy that the 1st Respondent is the statutory body charged with the responsibility of organizing election, making declarations and returns to all electoral offices.

From the above findings it is obvious that:

1. The Political Party APC, is’ legally entitled to make substitution for candidate in an election in which it is involved.
2. That this right of the Political Party to nominate and sponsor a candidate of its choice as the action is not subject to challenge except where not exercised judiciously which can include wrongful substitution of change of candidate. See KOLAWOLE

V FOLUNSHO (2009) 8 NWLR (PT. 1143) 338 at 339 paraS A-H.

From the above, the party’s choice of the Respondent as its replacement to its late gubernatorial candidate cannot legally be questioned or challenged by the Petitioner. More so, when the Petitioner was only sponsored by his party APC as a deputy governorship candidate to the election of the 21/11/2015 which was declared inconclusive.

Further, the Petitioner has been shown not to have participated in the party’s primaries for the gubernatorial seat but deputy governorship candidate. It is therefore the considered view of this tribunal that flowing from the above, the Petitioner lacks the locus standi to challenge the decision of his party APC to sponsor the 2nd Respondent as its substitute for the gubernatorial seat.

On issue two as submitted by counsel to the 1st and 2nd Respondent, the tribunal notes that the contention of parties can he briefly summarized as follows : –

1. The Respondent contends that the two grounds of the petition are as contained in section 1 3 8(1) (a) and (c.) of the Electoral Act 2010 and that the grievances of the Petitioner as contained in the petition include the contention that the 2nd Respondent was not a candidate at the 21/1 1/2015 election and did not nominate a deputy.
2. The Respondents also contends that ground one which is contemplation of section 138(I) a of the electoral Act deals on seat under section 177 of the constitution however that the facts al1eged in the paragraphs of the petition do not constitute grounds for qualification nor disqualification under section 182 of the 1999 constitution.
3. Furthermore, that the contention that the 2nd Respondent did not have a running mate to contest with at the election is not a disqualifying factor under sections 177 and 182 of the constitution.
4. That at the time of death of late Prince Audu of the APC, the name of the Petitioner had already been submitted to INEC as the deputy governorship candidate of APC and that his purported withdrawal is not within the provisions of section 3 5 of the electoral Act.
5. That the Petitioner acknow1edged the fact that the governorship candidate of APC late Prince Audu died before election was concluded. That on the death of the said governorship candidate, INEC directed his replacement and APC nominated the Respondent as the substitute, to that end there was no need for APC to replace the deputy governorship candidate in the name of the Petitioner.
6. That the Petitioner has not advanced any evidence, documentary or otherwise to show that the 2nd Respondent was disqualified to contest the election, that the said substitution by APC of their governorship candidate with the Respondent was a contingency caused by the death of the late Prince Audu, the governorship candidate of the 2nd Respondent’s name was replaced in exhibit R6 and that the evidence of P.W.I and RWI show that the 2nd Respondent was brought in as the result of the contingency of the death of late Prince Audu. The 2nd Respondent being the 1st runner-up in the primary election conducted by APC for the election as shown in exhibit R (2) 8 and evidence of RWJ.
7. That the contention of the Petitioner that the 2nd Respondent did not nominate a running mate did not flow from ground one of the petition.

Further, that the contention that the 1st Respondent admitted in its reply to the petition that the Respondent did not nominate a running mate will not dispense the burden of proof on the Petitioner to prove his case. The claim of the Petitioner being declaratory in nature.

The Petitioner on the other hand contends,

1. That the Respondent was not qualified to contest the election of the 21/1 1/2015 not having been sponsored by his Political Party and had relied on exhibits R (2) 8, P1 2, P4 having lost out in the APC primaries which produced late Prince Audu as the gubernatorial candidate and neither was his name in the final list of candidate for the 21/1 1/2015 election.
2. Furthermore, that the return of the Respondent as the governor was partly founded on the result of the 21/1 1/20 15 election which he did not participate in as exhibited by exhibit P35 and therefore invalid and the declaration ought to be set aside.
3. That exhibits P4, P8, P9, P12 and P7 are to the effect that the election concluded by the 21/1 1/201 5, the said exhibits being final list of candidates who contested the said 21/1 1/20 15 election.
4. That the fact that the 2nd Respondent has no running mate for the 5/1 2/20 15 election as shown in form Cf002 is fatal to his case and that no evidence was led by the Respondent in respect of exhibit R6 which was tendered from the bar hence same has no evidential value, having been dumped on the tribunal.

It is the tribunal’s considered view that it is bound by its ruling in respect of the 3rd issue in the preliminary objection. Furthermore, flowing from the said decision of the tribunal, the question whether the petition has made out a case of alleged non-qualification of the Respondent as alleged in the petition is answered in the negative. This being:-

8. That the Respondent was the 1st runner-up in the APC primaries for gubernatorial election held on 30/08/20 1 5 having scored 703 votes to come 2nd to the late Prince Audu who scored 1109 rotes as shown in exhibit R (2) 8.
9. That the contention that the 2nd Respondent did not have a running mate is not a condition for disqualification or qualification under sections 177 and 182 of the I999 constitution.

3 . On the provisions of section 177 of the 1999 constitution as earlier reproduced which deals with qualification of a governorship candidate. The tribunal observes that the Petitioner has not in the course of this petition shown by any evidence that:

1. The 2nd Respondent is not a citizen of Nigeria by birth.
2. That he has not attained the age of 35 years.
3. That he is not a member of a Political Party and is equally not sponsored by a Political Party.
4. That he has not been educated up to at least certificate level or its equivalent.

That in respect of section 182 of the 1999 constitution in respect of view that no evidence, documentary or otherwise has been provided by the Petitioner to show that the 2nd Respondent is disqualified within the meaning of section 182 (2) (a), (b), (c) and or (d) of the 1999 constitution.

It has been by plethora of authorities that in deciding issues  of qualification of a candidate in election petition, the tribunal should be guided by what has been provided for under sections 177 and 182 of the 1999 constitution as amended. See TARZOOR V IORAE 2 ORS (2016) 3 N\VI1R (PT. 1500) 463 at 498 paras G-H. ANPP V USMAN (PT. 1100)1 at 54 paras D-F, PDP V INEC (2014) 17 NWLR (PT.1347) 525 at 560 paras H-D, SHINKAFI & ANOR V VAR! APPEAL NO. SC 907/2015 OF 8/1/2016, KUBOR V DICKSON (supra) at 584-585 paras H-B

4. The fact that the parties are at a consensus as to the fact that the 2nd Respondent was nominated to contest as their gubernatorial candidate of APC because of the exigencies of the death of the gubernatorial candidate of APC, the late Prince Audu. On this, the tribunal observes that sections 33 and 35 of the electoral Act which deals with “Political Parties changing candidates” and “withdrawing of candidates” provides as follows:

Section 33:- “A Political Party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 3 1 of this Act, except in the case of death or withdrawal by a candidate’’.

Section 35 of the electoral act further states that:

“A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the commission and which shall only be allowed not later than 45 days to the election.”

From the above provisions, it’s obvious that section 33 of the electoral Act allows for the substitution of a deceased candidate and a valid withdrawal of a candidate. It is not in any doubt that the late Prince Audu died during the course of the 2 1/1 1 /2015 election thus giving the Political Party APC an opportunity to substitute its deceased candidate.

The Petitioner had contended that it wrote a letter to NEC withdrawing its candidacy as the deputy governorship candidate in the 5/12/2015 election. He has however, not placed any evidence before this tribunal documentary or otherwise to show that he wrote a letter to his Political Party withdrawing his candidature and that his Political Party informed the  Respondent INEC of his withdrawal. See DINGYADI V WAMMAKO (2008) 2 LRECN 103 at 145 paras A-D.

Consequently, the 1etter written by the Petitioner and his solicitor to INEC of his alleged withdrawal of his candidature does not constitute a valid withdrawal within the provisions of section 35 of the electoral Act.

While it is for the tribunal to state that the Respondents had reasons to substitute its deceased candidate due to force majeure, the same cannot be said on why the Respondents will change its deputy governorship candidate in the light of the provisions of section 35 of the Electoral Act 2010. Suffice it to state that the election was still on course and the death of Prince Audu, the gubernatorial candidate of APC would not have been anticipated. To that end, it is safe to conclude that the Petitioner remained the deputy governorship candidate of his party APC for the Kogi State gubernatorial election of 5/12/2015 not having validly withdrawn as same.

On the contention of the Petitioner that the 2nd Respondent is not qualified to contest the election as he did not participate in all the process of election as provided for by section 141 of the electoral Act, wherein the case of OMBUGADU was referred, it is the tribunal’s considered view that the fact that the 2nd Respondent participated in the APC primaries and was the 1st runner-up as shown in exhibit R 2(8) to the late Prince Audu, the gubernatorial candidate of APC, participated in the 5th December 2015 election and not having been disqualified by any of the conditions as stated above to contest the said election, it naturally follows that on the exigency of the death of the gubernatorial candidate of the party, that the party’s 1st runner up in its primaries in the person of the 2nd Respondent will be an appropriate choice of candidate to substitute it’s deceased candidate in the circumstance, more so when

APC was invited by INEC to substitute its candidate.

On the whole, the tribunal holds that the Petitioner has not proved the alleged issue of non- qualification of the 2nd Respondent.

On issue three, the respective counsel to the parties have submitted as follows:

1. That Prince Audu and Petitioner secured a joint candidacy of governor and deputy governor candidacy of APC for the 21/1 1/2015 election.
2. That the Petitioner was not an independent candidate in the 21/1 1/2015 election.
3. That the 2nd Respondent is a member of APC and was the 1st runner- up in the APC primaries of 30/08/201 5 as supported by exhibit R (2)8 and was substituted for the late Prince Audu as a gubernatorial candidate of his party.
4. That by virtue of the provisions of section 221 of the 1999 constitution, only a Political Party canvasses for votes and it is the programmes of the Political Party and manifesto that is propagated hence only a Political Party has a legal interest in the votes cast, which legal interest gives the Political Party an interest to present a petition.
5. The Respondent though conceding the fact that at the 2 1/1 1/20 15 election the joint ticket of the Petitioner and Prince Audu through APC secured 240,687 votes, while the 1st runner up PDP secured a total votes of about 1 99,5 1 4 votes, however, no declaration and return was made within the meaning of section 156 of electoral Act was made as the election was declared inconclusive due to electoral irregularities in 91 polling units.
6. The Respondents contended that the Petitioner as P.W.I under cross examination stated that no winner was returned for the 21/11/2015 election.
7. The Respondents further contended that since only Political Parties canvass for votes and win an election, votes cast in an election belongs to the Political Party and that in the instant case; the 2nd Respondent can take benefit of the said votes.
8. It is also the Respondents contention that the Petitioner having been nominated as the deputy governorship candidate of APC and not having legally withdrawn his candidature within the meaning of section 35 of the electoral Act is stopped from seeking the reliefs claimed more so, when he has not joined APC in the petition nor sought any reliefs against the nomination of the 2nd Respondent.

The Petitioner on the other hand, contends as follows:

1. That the evidence of RW1 is to the effect that the 2nd Respondent was not sponsored for the 21/1 1/2015 election not having won the primaries of his party as shown in exhibit R(2)8. Thus the votes are not transferrable.

2.That it has not been shown that instead of Prince Audu who  won the 21/11/2015 election that it was indeed the Respondent who is entitled to the votes in that election.

3. That the 2nd Respondent did not participate in all the stages of the election as envisaged by section 1 4 1 of the electoral Act to entitle him take the benefit of the election.
4. That the Respondent did not vote in the 2015 election in view of exhibit P40.
5. That the 2nd Respondents score of 6,885 at the 5/12/2015 election as against the 240,867 votes of the joint candidacy of

the Petitioner and late Prince Audu is insignificant to the total votes cast of the 21/1 1/2015 election.

6. On the cases relied on by the Respondent, it was contended that the facts are distinguishable from the instant case. As in those cases the parties were candidates at the election while in the instant case it is not so.
7. That the provisions of section 221 of the 1999 constitution do not avail the 2nd Respondent. That after votes has been cast for a particular candidate; there cannot be a change of the candidate.
8. The Petitioner contends on the issue of non- joinder of APC that section 137 of the electoral Act delimits who Respondent in an election petition can be as he has no claim against APC, more so that APC is not complaining.
9. That the Petitioner was entitled within the provisions of Section 18(1) of the I999 constitution to be sworn in as the governor hence the provision of section 3 5 of the electoral Act is inapplicable having been nominated for the 2/1 1/2015 election and not the 5/12/2015.

The tribunal having carefully looked at the issues raised finds itself by its ruling on issue six of the Preliminary Objection as it relates to the non- joinder of APC as a party. The tribunal notes the following salient features:

1. Both the Petitioner and the 2nd Respondent belong to the same Political Party APC.
2. That the Petitioner was sponsored as a deputy governorship candidate along with the late Prince Audu as his governorship candidate.
3. That the Respondent was equally sponsored by APC as a governorship candidate to replace the late Prince Audu.

It is trite that nomination or sponsorship of a candidate is within the domestic affairs of a party and the court/tribunal has no jurisdiction to nominate for a Political Party its candidate for any election. See EMEKA OKADIGBO (2012) 18 NWLR (Pt. 1331)55, UKACHUKWU .V. PDP (2014) 7 NWLR (pt. 1435) 134 at 202 paras D-F, 203 parasA-D NWAZURIKE .V. NWACHUKWU (2013) 3 NWLR (pt. 1342) 503.

 To our mind the above position of the law also applies to an individual member of a Political Party except where there is a breach under section 87 (9) of the electoral Act 20 1 0 (as amended). See UKWU .V. PDP (2015) 7 NWLR (pt. 1459) 478. It is a fact that the Petitioner was sponsored by his Political Party APC as a deputy governorship candidate for the 21/1 1/20 1 5 election. There is no evidence before the tribunal that the said election was concluded. To that end, the Petitioner remained a deputy governorship candidate at the declaration of the inconclusiveness of the election contrary to the contention of the Petitioner.

The implication of the election of 21/1 1/2015 being declared inconclusive by the 1st Respondent is that no declaration nor return was made as to the winner of that election hence in the absence of a declaration or return the Petitioner remained a deputy governorship candidate in the inconclusive election and no right can be said to have enured to him nor can he benefit from the provisions of section 181 (1) of the 1 999 constitution which provides for stepping into the shoes of an elected candidate as he claims. On the status of the 2nd Respondent, the tribunal finds as a fact that the 2nd Respondent was nominated by his Political Party APC as a governorship candidate to substitute the late Prince Audu on demise of the latter. There is also material evidence before the tribunal vide exhibit R(2)8 to show that the Respondent a participated in the governorship primaries of APC on 30/8/20 15 wherein he came up as the 1st runner- up to the late Prince Audu who was sponsored as the governorship candidate. It is equally a fact that the Petitioner did not participate in the APC governorship primaries, his name not having been shown in exhibit R (2) 8.

It is trite that a Political Party has exclusive power to conduct its primary election. See the case of ADEGBUYI .V. APC (2015) 2 NWLR (pt. 1442) 1 at 22 para H.

From the above, it is obvious that it is not for the Petitioner or anybody else to dictate to the Political Party APC who to nominate or sponsor as its substitute to the late Prince Audu, the governorship candidate. To our minds, the Respondent having participated in the governorship primaries of APC and being the 1st runner-up in the election which produced the late Prince Audu as the winner is more qualified to step into the shoes of the winner of that primary election in the person of Prince Audu, now deceased, than the Petitioner who did not participate in the governorship primary election and was never nominated by APC at any stage as its governorship candidate.

It is trite that an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of election as contended by the Petitioner. See the case of ELIGWE .V. OKPOKIRI (2015) 2 NWLR (pt. 1448) 248 se 377- 378 paras A-D, section 141 of the electoral Act 2010 (as amended).

However, in the circumstance of the instant petition, it is a fact that the 2nd Respondent had indeed participated in the primaries for governorship candidate and came 2nd to the late Prince Audu. He also participated in the governorship election of 5/1 2/2015, the reason for not participating in the 21/12/201 5 being that Prince Audu was alive. The facts in this case is therefore distinguishable from the case of OMBUGADU (supra) where the court was said to have observed that the candidate was not screened, his information was not published in his constituency, his name and address were not displayed at relevant INEC office and website and did not participate in the election.

To our minds, in the given circumstance, it cannot be said that the

Respondent did not fully participate in the stages of the election wherein he was returned as the governor.

It is trite that without a Political Party, a candidate cannot contest an election and it is a Political Party through the instrumentally of a sponsored candidate that wins an e1ection See the case of AZUBIKE .v. PDP (2014) 7 NWLR (pt. 1406) 292 (SC) at 320-321 paras E-A pg 333 paras E-A, B-C and F, AGBAJE V INEC (2016) 4 NWLR (PT. 1501) 151 at 165-166 paras C-D, GWEDE V ¡NEC (2014) 18 NWLR (PT. 1438) 56 at 125-126 G-C, PER Odili JSC, to the effect that “ ……..an applicant can only be sponsored by a Political Party which must nominate him as a candidate. He cannot nominate himself since that is the prerogative of the Political Party . . . “ See also Section 22 1 of the 1999 constitution where the Political Parties take priority over the candidates.

The Petitioner had contended that his joint candidacy with late Prince Audu secured 240,867 votes as compared to the 6885 the 2nd Respondent. He had further contended that the 2nd Respondent was not justified to take the benefit of the votes candidacy with late Prince Audu.

The tribunal is not in any doubt that the said 240,687 secured through the candidacy of late Prince Audu and the Petitioner belong to the party in whose name, the joint candidates secured the votes. To that end, the 2nd Respondent does not arise.

Consequently, it is the tribunal’s view that both the votes garnered at the 21/1 1/2015 election which was declared inconclusive and the ones garnered on 5/12/2015 belong to the Political Party who sponsored the view is further strengthened by the decision of the supreme court in PDP .V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205 wherein the court held on the validity of the supplementary election ordered and conducted by INEC after the declaration of the election inconclusive as valid.

The tribunal notes that the Petitioner has contended that it is only interested in the 2 1/1 1/20 1 5 and not the 5/1 2/20 1 5 election having opted not to participate in the supplementary election. It is trite that a candidate who withdraws before the conduct of an election has no competence and authority to complain or institute an action in respect of the election. He has no capacity to approach the court to enforce any right from the same votes secured by the 2nd Respondent. See the case of ADEGBUYI .V. APC (supra) at pg 22 paras F-H, GBAMGBOYE .V. SARAKI (2010) 14 NWLR at page 125.

Furthermore, a complainant must be an aspirant who participated in the primaries that produced the candidate. See UKACHUKWU .V. PDP (supra) (SC) at 182, paras E-H, 184, paras F-G, 203, paras A-B.

Consequently, it is the tribunal’s humble view that although the

Petitioner contends that his petition is based on election of 21/11/2015 which this tribunal had noted was declared inconclusive, the rights of the 2nd Respondent which were secured from the 5/1 2/20 1 5 election are tied up to his complaint and it is trite that the Petitioner not having participated in the election of 5/12/201 5 which participation he excluded himself from, cannot challenge any rights secured by the 2 Respondent arising from the said election.

It is therefore the tribunal’s view that he lacks the locus standi so to do.

Issue three is hereby resolved against the Petitioners

On issue four, the respective submissions of parties can briefly be stated as follows:

1. The Respondent contends on this issue that the Petitioner was not duly returned as the deputy governor-elect in accordance with section 179 (2) a & b of the constitution since the election was declared inconclusive. Return is as defined under section 156 of the Electoral Act.
2. Respondents contended that PWI under cross- examination stated that no candidate was returned in the election as shown in exhibits P27 and R2.
3. Further, they contended that the reliefs sought are incompetent as there was no return made and the election having been declared inconclusive.
4. That the declaration of the election inconclusive was valid having been made pursuant to chapters 3 Section A paragraph 3.11 step 14 of the INEC Election Manual for officials 2015, being subsidiary legislation, the tribunal can take judicial notice of same.
5. They submitted that where a margin of win between the two leading candidates is not in excess of the total votes of registered voters of the polling unit where election was cancelled or not held, the returning officer may decline to make a return until another poll has taken place in the affected polling unit and the result incorporated into a new form EC8D and recorded into EC8E for declaration and return.
6. The Respondents have contended that the operative word in that provision is “registered voters” and not “permanent voter card” (PVC) and that, which was what prompted the declaration of the result as inconclusive as shown in exhibit P5.
7. Furthermore, that the converse would have been the case if the election was not declared inconclusive as the Petitioner would have taken advantage of section 181 (a) of the constitution to step into the shoes of late Prince Audu.
8. They submitted that the Petitioner failed to prove before the tribunal that there was return by INEC and none of the documents tendered by the Petitioner from exhibit P 1 -P44 shows that a return had been made by 1NEC.
9. That exhibit P27 shows that the 2 1/1 1/20 1 5 election was inconclusive and that supplementary election was to be carried out on 5/12/2015.
10. The Respondent also contended that there was no document to show the number of voters accredited for 2 1/1 1/20 1 5 and 5/1 2/20 1 5 election.
11. On the documents tendered by the Petitioner, the Respondent contends that most of the documents tendered were dumped or the tribunal, amongst which are exhibits P2, 6, 1 7,1 8, 1 9, and 20.

The documents were not referable to specific areas of the petitioner’s case.

12. That forms EC8D and EC8E which are documents that should have determined whether there was declaration and return were not issued on 2 1/1 1/20 1 5 as the election was declared inconclusive.
13. However, exhibits P34 and P35 which are form EC8D and EC8E were issued on 7/1 2/20 1 5 evidencing the declaration and return in the 5/12/2015 election.
14. That the provisions of section 1 79 (2) a and b cannot benefit the Petitioner as election in 91 polling units were cancelled as shown in exhibit P27.
15. The Respondent contended that the petitioner who was the deputy governorship candidate at the 2 1/ 1 1/2015 election was not duly elected as deputy governor of Kogi State and the tribunal was urged to resolve the issue in their favour and dismiss the petition.

The Petitioner on the other hand contends as follows:

1. That the Petitioner was duly elected within the meaning of section 1 79 (2) (a) & (b) of the having scored the

highest votes cast and not less than ¼ of votes cast in all the local government areas of the state.

That it is not in dispute that 22 governors and their deputy  Governorship candidates canvassed for the 21/1 1/201 5 election which paragraph 16 of the Respondent’s reply confirmed.

2. The Petitioner contended that the late Prince Audu and himself had therefore been duly elected as governor and deputy governor- elect and that the refusal of the 1st Respondent to declare them as winner and the act of declaring the election inconclusive was a violation of the constitutional provision.
3. He also contended that the reason given by the 1st Respondent on the margin of votes and reliance on chapter 3 was untenable

as constitutional provisions take precedence over the subsidiary legislation.

The tribunal is bound by the orders in the preliminary Objection especially as it affects this issue. In further consideration of this issue, the tribunal has earlier in its ruling observed that the Petitioner was sponsored as a deputy governorship candidate along with late Prince Audu who was sponsored as the governorship candidate in the 21/11/2015 election.

Furthermore, that the late Prince Audu died in the course of the election.

It is also a fact as established before the tribunal that no declaration or return was made for the 21/11/2015 election before the death of Prince Audu.

It is trite that there is a rebuttable presumption that any election result declared by a returning officer is authentic and correct and the burden of rebutting that presumption is on the person who is challenging it. See the case of NGIGE .V. INEC (2015) 1 NWLR (pt. 1440) 281 (SC) 317 —146 318 paras H-A, ABUBAKAR .V. YAR’ADUA (2008) 18 NWLR 9pt.1120)1.

 It is a fact that no satisfactory evidence has been produced by the Petitioner to substantiate his contention that the election was concluded on 2 1/11/2 0 15. On the Petitioner‘s contention on section 1 79 (2) a and b of the 1999 constitution which Section provides thus: 179(2) a and b:-

“A candidate for an election to the office of a governor of a state shall be deemed to have been duly elected where, there being two or more candidates:-”

1. He has the highest number of votes cast at the election and
2. He has not less than one quarter of all the votes cast in each of at least 2/3 of all the local government areas of the state.

That the election having not been concluded on 2 1/1 1/201 5 and the Petitioner having not scored the alleged highest votes and ¼ votes cast in all the local government of Kogi state cannot be legally correct since there are available facts to show that the election was declared ‘inconclusive, as the Petitioner also admitted under cross examinations that no return was made on the 21/1 1/2015 election. See NGIGE .V. INEC (supra) at 317 paras 1) D-H

147  Furthermore, from the above analysis, the provisions of section 1 81(1) of the 1999 constitution will equally not be applicable. It is also true that the Petitioner not having been declared as deputy governor- elect, he cannot legally step into the shoes of the governor- elect as he claimed on his demise, as the governor- elect cannot also be deemed to have been legally elected.

On the contention of the Petitioner that the INEC manual relied upon by the Respondents cannot avail them on breach of the constitutional provisions of section 1 79 (2) a and b of the 1999 constitution.

This tribunal contrary to the Petitioner’s contention agrees with the Respondents’ submission that the INEC manual is a subsidiary legislation issued by INEC within the powers conferred on it by section 160 of the 1999 constitution and the provisions of section 73 and I53 of the Electoral Act and therefore also has the force of law and we so hold. We also find no contradiction between the provisions of section 160 and 179 of the 1999 constitution.

It is trite law that a Petitioner must succeed on the strength of his case and not on the weakness of the case of the defence unless where he finds the evidence of the defence which strengthened his case.

Furthermore, no matter how brilliant a counsel’s address is it cannot take the place of legal evidence. See the case of OLATUNJI .V. WAHEED (2012) 7 MVLR (pt. 1298) 24 at 48 paras C-F and 5( Para D.

On the whole, the inevitable conclusion which this tribunal has reached that the Petitioner has not placed sufficient material before this tribunal in proof of the petition as the reliefs sought therein consonance with the grounds or facts in the petition nor a known relief in compliance with the provision of the Constitution and the Electoral Act. This Petition with suit No EPT/KG/GOV/O5 between Hon. J.A Faleke V INEC& Yahaya Bello is therefore dismissed for lacking in merit.

 

 

HON. JUSTICE H.S. MOHAMMED

 

CHAIRMAN

 

6/6/2016

 

HON. JUSTICE O. E. EJEMBI      HON JUSTICE P.I AJOKU

MEMBER                                         MEMBER